Monday, 20 April 2015

Migrant deaths in the Mediterranean: What can the EU do?

Steve Peers

The latest tragedies in the Mediterranean
add to the enormous and growing death toll of
migrants crossing that sea. Today EU ministers will consider the issue as a
matter of urgency, and the Commission is due to propose an EU strategy next
month. Here are some thoughts as to what parts of the EU response should be.

First of all, it is necessary to reinstate
a major search and rescue operation. The EU’s ‘Triton’ operation which replaced
the Italian ‘Mare Nostrum’ operation from the end of last year is obviously
inadequate as regards saving lives – which is not its main purpose in the first
place. Equally the assumption that the termination of Mare Nostrum would reduce
the number of migrants willing to undertake the Mediterranean crossing – and die
in the attempt – was obviously mistaken.

The new operation need not be an EU
operation as such, due to legal questions about how much the EU as such can set
up a search and rescue operation. Possibly the EU, or at least a large group of
its individual Member States, can contribute toward the coordination and
funding of a joint operation, rather than leave this entirely up to the Italian
government as before.

Secondly, the EU has an established
system for border surveillance, known as Eurosur. Its main focus in border
control but it has a subsidiary role as regards detecting migrants in need of
rescue. It could be focussed more on the humanitarian aspect, if necessary by
means of a rapid amendment to the legislation establishing it – or alternatively,
if there are legal doubts about this, by a parallel agreement among the Member
States.

Thirdly, the EU should address the important
role of the private rescue of migrants. At present, the EU Directive
prohibiting the smuggling of migrants specifies that any assistance to
irregular migrants is prohibited – even if the person or organisation concerned
is not acting for profit. There is only an option
for Member States to exempt humanitarian assistance from the prohibition. This
legislation should be amended as soon as possible to make this exception
mandatory, clarifying that this also exempts private sea vessels which assist
those in need (in accordance with the law of the sea) also benefit from the
exception. Private vessels which lose money as a result of offering assistance
(for instance, because they were diverted from catching fish) should be
compensated by national or EU funds if necessary. This amendment could be
fast-tracked, pending a more comprehensive review of the legislation to consider
the best criminal law response to smugglers and traffickers.

Fourthly, there is a need to address
the situation in countries of origin and transit, so that fewer people feel the
need to make this risky journey in the first place. This also takes account of realpolitik: it’s not socially,
economically or politically feasible for the EU to offer protection to everyone
in the world that needs it. Of course, solving the conflicts and poverty that
cause desperate people to flee in the first place is far easier said than done.
But it would certainly be possible to fully review EU foreign policies and
development aid funding with a view to addressing the root causes of migration.

In terms of a legal response, there
are several other external aspects of EU migration policy. For those who have a
need for international protection, many already receive support or protection
in neighbouring and transit countries, and the EU could step up its contribution
to such assistance. A proportion of the
people concerned are already resettled by Member States, and the EU could increase
its support for this resettlement process. It might be useful to amend EU
asylum legislation to confirm that the persons concerned have refugee status in
the Member States concerned, in accordance with the EU’s ‘Qualification
Directive’, upon arrival.

There’s also an existing legal framework for Member States to consider applications
for asylum lodged at their consulates in third (non-EU) countries. At the end
of 2013, the EU’s main court (the CJEU) already ruled in the Koushkaki case that the EU’s current
visa code requires Member States to
issue visas to applicants if the criteria for issue are met. The visa code mainly
applies to short-term visas, not visas for people who need long-term
international protection. However, the code also provides for rules on the issue
of a short-term visa with ‘limited territorial validity’ (LTV). These visas are
not valid in all Schengen states, but rather valid usually in only the single
Schengen State which issues them.

According to the current visa code, an
LTV visa ‘shall be issued…when the Member State concerned considers it
necessary on humanitarian grounds, for reasons of national interest or because
of international obligations’. The important point is that an LTV visa can be
issued where the usual conditions for issuing a visa are not met, for instance
where there is insufficient evidence of an intention to return to the country
of origin. Obviously, where a person has a genuine protection need, a
reluctance to return to her country of origin is perfectly understandable;
indeed, it is built into the very definition of refugee or subsidiary protection
status (ie a well-founded fear of suffering persecution or serious harm in that
country).

It’s arguable the 2013 CJEU ruling in
the Koushkaki judgment also
applies to LTV visas, in light of the word ‘shall’. Admittedly, that word is
then qualified by the words ‘considers it necessary’. But arguably, at least in
cases involving a potential international protection need, the EU Charter of
Fundamental Rights requires that where a person applies for a visa from a
(Schengen) Member State, the existence of such a need must be considered if it
is alleged, and an LTV visa must be issued if such a protection need exists. It
can hardly be denied that EU law (and therefore the Charter) applies whenever a
third-country national applies for a visa from a Schengen Member State.

So the EU and its Member States could
agree that this is the correct interpretation of the existing law, and take
action to put it into effect, for instance adopting guidelines or standard rules
for consulates on how to apply such obligations. EU funds could assist with any
additional costs for Member States.

There’s also an immediate opportunity
to address this issue by means of legislation, since proposed
amendments to the visa code that would fully overhaul it are currently
under discussion in the Council and the European Parliament (EP). These
proposals raise many different issues, and the Council and EP are still at an
early stage of discussing them. But it would be possible to split up the
proposal and adopt an amendment to the LTV rules on a fast-track basis.

In a previous blog post, I
suggested a simple amendment to the visa code to this end. This would simply
amend the rules to state that an LTV visa ‘shall be issued…when it is
necessary in order to ensure the international protection of the person
concerned in accordance with Directive 2011/95 [the Qualification Directive],
or when the Member State concerned considers it necessary…’.

In the longer term, other difficult
and controversial aspects of an external protection policy could be developed. It
would be possible to develop ‘joint external processing’ of asylum claims, as
long as such processing in no way prejudices applications made at the border or
on the territory of Member States, and entails the entry and stay of persons
with international protection needs either on the territory of Member States,
or on the territory of third countries which offer an equivalent level of
protection. Nor should joint processing prejudice the resettlement of those
groups of persons (such as Syrian refugees) whose need for international
protection is obvious.

The problems associated with such
joint processing should not deter the EU from taking the immediate steps
outlined here that could reduce the death toll on the Mediterranean by stepping
up rescue efforts and by giving more people with an established protection need
a form of safe passage to the EU – either by means of resettlement of
established refugees or assessment of asylum-seekers’ protection needs as an
adjunct to the visa application process. There is a moral imperative for the EU
to act swiftly and effectively to address the issue.